Civil
Procedure -- Contempt of court -- Committal proceedings
-- Application for -- Statements by first respondent to protest increase in
water tariff -- Statements made at closed door meeting – Statements
subsequent reported in 'Harakah' -- Whether statements attacked plaintiff's
integrity and propriety in such a way as calculated to interfere with course
of justice -- Whether would lead court to be hesitant to find in favour of
plaintiff in ongoing suit -- Freedom of speech and expression -- Rules of the
High Court 1980 O 52 r 2 -- Federal Constitution art 10(1)(a) & 10(2)(a)

The
first respondent was counsel who represented the State Government of Selangor
in a suit instituted by the present applicant in relation to a dispute over
the State Government's refusal to consent to an increase in water tariffs.
The alleged contempt related to certain statements made by the first
respondent to a group of representatives from 30 Community Religious Schools
(Sekolah Agama Rakyat) as part
of a campaign to protest the increase in water tariff. It was further given
at a closed door meeting. The above statements were subsequently reported by 'Harakah',
a publication of PAS with a circulation limited to party members. The second
respondent was sued as the editor of Harakah. The article stated,
inter alia, that the applicant's attempted to increase water tariff was not
bona fide and genuine in view of the suspicious substantial liabilities which
was said to be 'impossible to have been accumulated' by the said plaintiff.
The applicant contended that the objection was focused on the word 'mustahil',
and this indicated and cast innuendos on the impropriety and integrity of the
applicant, Syabas, which amounted to a direct attack on the credibility and
integrity of the applicant so as to be viewed as calculated to interfere with
the course of justice and therefore will likely interfere, or has interfered
with, the due process of law and the course of justice in relation to the
ongoing suit. The respondents however, argued that there was no comment made
in relation to the on¬going suit, and hence there was no issue of sub judice
to speak of in the first place.

Held,
dismissing the application with costs:

(1)
The preliminary governing principles on sub judice and contempt require the
court to tread very carefully when an allegation of contempt or to commit a
citizen to prison for it, comes before the court. The court has to be
satisfied on a high burden of proof that the administration of justice has
been sullied or compromised. Ultimately, the test of possible or likelihood
of prejudice has to have reference to the professional judge who will be
hearing the case, not a collection of layman jurors -- a system which has ceased
to exist in our system of civil litigation. The court would have thought it
will require more than a criticism of a litigant in a media of limited
circulation (such as Harakah) to influence a judge to be somehow
prejudiced against the litigant criticised (see para 39).

(2)
The occasion, and the briefing, was in relation to the campaign, which itself
was part of a wider public discourse on the water tariff issue. This wider
discourse was actively carried in the electronic and print media. Indeed, the
whole issue of privatisation of water resources had been discussed at length
by members of the public well before the filing of the Syabas suit in 2010.
The practical reality and law have somehow to find an accommodation based on
considered principles (see para 33).

(3)
It is all a matter of proportion and circumstance. If a comment attacks the
merits of an ongoing litigation, for example, or cast aspersions on the
independence and integrity of the judiciary and the judicial process in the
context of an on-going active suit, there will obviously be a breach of the
sub judice rule and will be an act of contempt. However, these elements were
not found in the present case. In a larger constitutional context, the law of
contempt must necessarily bend to the higher liberty of freedom of
expression, not the reverse (see paras 35-36).

(4)
The common law rule in relation to sub judice have to be molded in the light
of the fundamental liberties provisions. The court cannot believe the
sensitivities of the average Malaysian can be so different so as to incline
the court to adopt a completely different juristic approach which relegates
freedom of expression below the sub judice rule. On the present facts, the
allegation of contempt was not proven against the respondents (see paras
37-38 & 40).

Tommy
Thomas (Yusmadi & Yusof with him) (Tommy Thomas) for the first
respondent.

Mohd
Hanipah Maiden and Azhana for the second respondent.

Tieh
Siaw Siong (watching brief) (SS Tieh) for the Bar Council.

MohamadAriff
J:

PROCEDURAL
INTRODUCTION

[1]
This court had granted leave earlier to the
applicant to apply for an order of committal against the present respondents
under O 52 r 2 of the Rules of the High Court, since at that ex parte stage
of leave application, I was satisfied, on the materials submitted before this
court, the application was not frivolous or vexatious, and at that stage all
that the applicant had to show was a prima facie case of contempt without
this court needing to go into the full merits of the matter.

[2]
At the present stage of a full hearing for an order
of committal against these respondents, I have had the advantage of the
replies from each of the respondents, and aided by very detailed submissions
by counsel representing the parties, the allegation of contempt can now be
seen in its totality and properly evaluated by this court.

PRELIMINARY
PRINCIPLES

[3]
It will be useful to clarify at the outset three
important preliminary principles which should guide and control the court's
jurisdiction to punish for contempt. One of these principles was highlighted
by the Court of Appeal in the leading case of Murray Hiebert v Chandra Sri
Ram [1999] 4 MLJ 32 which quoted an earlier leading decision of Arthur
Lee Meng Kwang v Faber Merlin (M) Bhd & Others [1986] 2 MLJ 193, and
that important
principle is this. Committal is a very serious matter and the courts must
proceed very carefully before making an order to commit someone to prison.
Rules have been laid down to secure that the alleged contemnor knows clearly
what is being alleged against him and has every opportunity to meet the
allegations. See also the English case of re-B (JA) (An Infant) 1 Ch
1112 as a source authority referred to by our courts for the principle outlined.

[4]
A second preliminary important principle relates to
standard of proof. The standard of proof required in contempt of court
proceedings is proof beyond reasonable doubt. It goes without saying that
where a doubt exists, it should be resolved in favour of the alleged
contemnor. See eg Lord Denning in Re Bramblevale Ltd [1970] Ch 128 :

A contempt of court is an offence of a criminal
character. A man may be sent to prison for it. It must be satisfactorily
proved. To use the time-honored phrase, it must be proved beyond all
reasonable doubt.

[6]
The third preliminary important principle is in
relation to the 'root principle', and the purpose for which the courts
inherent power to punish a contempt is founded. This is addressed, for
instance, in Re HE Kingdon v SC Goho [1948] MLJ 17 :

But the root principle on which this inherent power
to punish a contempt is founded, and the purpose for which it must be
exercised is not to vindicate the dignity of the individual judge or the
judicial officer of the court or even of the court itself but to prevent an
undue interference with the administration of justice in the public interest.
(per Brown J, at p 18)

[7]
Thus stated, the law of contempt has less to do with
the direct litigants but is more concerned with upholding the administration
of justice. This point has to be emphasised and clarified because there are
some old case authorities which have a tendency to cloud the issue. And this
is particularly true in that specific area of the law of contempt which
touches on the so-called 'sub judice' rule.

THE
SUB JUDICE RULE

[8]
This present case directly concerns the 'sub judice'
rule. Nigel Lowe and Brenda Sufrin, 'The Law of Contempt' (a relevant
commentary cited by counsel for the applicant, Mr Max Yong) describes it
simply and succinctly as follows: 'The law on what may be published about
current legal proceedings is popularly known as the sub judice rule'. The
learned authors also added this observation:

Contempt of court as it applies to publications
which interfere with due course of justice in particular proceedings had its
origins in an age when there was no photography, the concept of the tabloid
press and of newspapers as a virtual branch of the entertainment industry was
undreamed of and indeed before the word 'media' was invented. (At p 68 of the
text)

[9]
Thus in some old cases the sub judice rule is made
to appear as if it extended to the publication of anything which was likely
or 'tends to excite prejudice against the parties' while the litigation was
pending. In a 1742 case (St James Evening Post case) a more colourful
description was used namely contempt 'by prejudicing mankind against persons
before the case is heard. This colourful phrase also made an appearance in a
more modern setting in the English Court of Appeal in Attorney General v
Times Newspaper Ltd [1973] 3 All ER 54, but Lord Denning MR placed it in
its proper context by stating:

When litigation is pending an actively in suit
before the court, no one shall comment on it in such a way that there is a
real and substantial danger of prejudice to the trial of the action, as for
instance by influencing the judge, the jurors, or the witnesses, or even by
prejudicing mankind in general against a party to a cause. Even if the person
making the comment honestly believes it to be true, still it is contempt of
court if he pleaded as the truth before it is ascertained in the proceedings.
To that rule about a fair trial, there is this further rule about bringing
pressure to bear on one of the parties to the cause so as to force him to
drop his complaint, or to give up his defence, or to come to a settlement on
terms which he would not otherwise have been prepared to entertain. The law
should be maintained in its full integrity. We must not allow 'trial by
newspaper' or 'trial by television' or 'trial by any medium' other than the
courts of law. This law applies only when litigation is pending and is
actively in suit before the court and there must appear to be 'a real and
substantial danger of prejudice' to the trial of the cause or matter or to
the settlement of it.

The law in relation to what may be published
concerning current legal proceedings is sometimes referred to as the sub
judice rule. The publications are such they are intended to impede or
prejudice the administration of justice which may in turn constitute acts
punishable as contempt of court. The true nature of the doctrine itself
requires that they have to be established an actus reus and mens rea to cause certain
publications which would have a prejudicial effect on the criminal
proceedings ... (at p 714).

[11]
As stated by the English Court of Appeal, it must be
necessary to establish that the impugned publication carries a real and
substantial danger of prejudice to the trial of the matter. It cannot be a
mere matter of speculation.

[12]
By way of completeness, it should be noted the case
went up on appeal to the House of Lords, and the decision of the Court of
Appeal was reversed. Nevertheless, the general principles stated by Lord
Denning, as quoted above, were not expressly departed from.

[13]
Lord Reid, for instance, said:

There is ample authority for the proposition that
issues must not be prejudged in a manner likely to affect the mind of those
who may later be witnesses or jurors. But little has been said about the
wider proposition that trial by newspaper is intrinsically objectionable ...

I think that anything in the nature of prejudgment
of a case or of specific issues in it is objectionable, not only because of
the possible effect on that particular case but also of its side effects
which may be far reaching. Responsible 'mass media' will do their best to be
fair, but there will also be ill-informed, slapdash or prejudiced attempts to
influence the public. If people are led to think that it is easy to find the
truth, disrespect for the processes of the law could follow, and if the mass
media are allowed to judge, unpopular people, and unpopular causes will fare
very badly (at p 300).

[14]
Lord Reid also addressed the issue of the need to
establish a 'real risk' thus:

I think the true view is that expressed by Lord
Parker CJ in Reg v Duffy, Ex Parte Nash [1960] 2 QB 188, 200, that
there must be 'a real risk, as opposed to a remote possibility'. That is an
application of the ordinary de minimis principle. There is no contempt if the
possibility of influence is remote. If there is some but only a small
likelihood, that may influence the court to refrain from inflicting any
punishment. If there is a serious risk some action may be necessary. And I
think that the particular comment cannot be considered in isolation when
considering its probable effect ... (at pp 298-299)

[15]
It might also be appropriate at this conjuncture to
mull over what Lord Diplock had to say on matters of general public interest:

I entirely agree that discussion, however strongly
expressed, on matter of general public interest of this kind is not to be
stifled merely because there is litigation pending arising out of the
particular facts to which general principles discussed would be applicable.
If the arousing of public opinion by this kind of discussion has the indirect
effect of bringing pressure to bear on a particular litigant to abandon or
settle a pending action, this must be borne because of the greater public
interest in upholding freedom of discussion on matters of general public concern.
(at p 313)

[16]
This issue of 'the greater public interest' will be
addressed subsequently in this judgment.

THE
BACKGROUND FACTS

[17]
On the facts of this present application, the first
respondent is the counsel who is representing the State Government of
Selangor in a suit instituted by the present applicant in relation to a
dispute over the State Government's refusal to consent to an increase in
water tariffs. The alleged contempt relates to certain statements made by the
first respondent and the subsequent reporting of the statements by Harakah,
a publication of PAS with a circulation limited to party members. The second
respondent is being sued as the editor of Harakah.

[18]
It is necessary to place this dispute in context by
quoting the alleged objectionable publication. I do so now. The Harakah news
report appears as exhibit FN1 to the affidavit of Fahda Nurbt Ahmad Kamar:

[19]
I have italicised those parts which are objected to
by the applicant, ie paras 2, 5, 6 and 8 of the news report.

[20]
Just what is the precise nature of the complaint by
the applicant? It is neatly summarised in para 11 of the supporting affidavit
affirmed by Dato' Ruslan bin Hassan. It is also well expressed in the
statutory statement, and I quote:

... the publication and circulation of Harakah
newspapers containing the statements and quantum of liabilities a set out in paragraphs
4(a) and 4(b) of the Statement Pursuant to Order 52(2) of the Rules of the
High Court were inaccurate and incorrect because these statements did not
reveal the inclusions capital investments and expenditures as stated in the
affidavit in support of Dato' Ruslan bin Hassan ... which was not revealed in
the said article published and such actions and conduct were calculated to
cast doubts and suspicion on the accounts of the Plaintiff and was calculated
to give rise to a reasonable and objective impression on an ordinary
reasonable reader of average intelligence that the Plaintiff ... in the said
case was insolvent and the attempt to increase water tariff was not bona fide
and/genuine in view of the suspicious substantial liabilities which was said to
be 'impossible to have been accumulated' by the said Plaintiff ... casting
innuendos on the impropriety and integrity of the said Plaintiff which
amounted to a direct attack on the credibility and integrity of the said
Plaintiff and this is calculated to interfere with the course of justice and
therefore will likely interfere or has interfered with the due process of law
and the course of justice, in that the High Court should be hesitant to find
In favor of the said Plaintiff in the said case hence the 1st Respondent has
committed criminal contempt against this Honourable Court.

[21]
In this connection, counsel for the applicant argues
the objection is focused on the word 'mustahil', and this connotes and casts
innuendos on the impropriety and integrity of the applicant, Syabas, which
amounts to a direct attack on the credibility and integrity of the applicant
so as to be viewed as calculated to interfere with the course of justice and
therefore will likely interfere, or has interfered with, the due process of
law and the course of justice in relation to the ongoing suit.

THE
CONSTITUTIONAL DIMENSION: ART 10(1)(a)

[22]
Both respondents, through counsel (Mr Tommy Thomas
and Encik Hanipah Maidin respectively), have raised an issue of
constitutionality based on art 10(1)(a) read in conjunction with art
10(2)(a), reading:

10(1) Subject to Clause (2) ...

(a) Every citizen has the right to freedom of speech
and expression;

...

(2) Parliament may by law impose --

(a) On the rights conferred by paragraph (a) of
Clause (1), such restrictions as it deems necessary or expedient in the
interest of the security of the Federation or any part thereof, friendly
relations with other countries, public order or morality and restrictions
designed to protect the privileges of Parliament or of any Legislative
Assembly or to provide against contempt of court, or incitement to any
offence ... (Emphasis added.)

[23]
By resorting to the constitutional provision in our
Federal Constitution, the first respondent argues she has the right to
comment on a matter of public interest which has entered the public domain
for some time now, namely the issue of Syabas wanting to increase water
tariffs against the objection of the Selangor State Government, since after
all, aside from being the counsel for the State Government in the above
mentioned suit, she is also a member of a review committee appointed by it on
water resources. Although legislation exists to regulate freedom of speech
and expression in relation to contempt of court, the sub judice rule cannot
be so interpreted as to render her constitutional rights illusory.

[24]
The second respondent relies on these same
constitutional provisions to support Harakah's right to media freedom.

[25]
The principle established in Dewan Undangan Negeri
Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697 that
the court should test the validity of state action with regard to fundamental
rights by considering whether it directly affects the fundamental rights or
whether its inevitable effect or consequence is such that it makes their
exercise ineffective and illusory, is raised in support of this position.

[26]
This issue of constitutionality is important,
particularly in the context of not just rights in the abstract but also in
terms of present day practical realities where the impact and influence of
electronic media have to be given due recognition. The realities will
determine the reach of the sub judice rule when applied to the particular
facts. It will therefore be inappropriate sometimes to apply principles from
older authorities to solve legal problems of the present.

[27]
Part of the practical realities also relates to the
demise of the jury system in Malaysia.
In a jurisdiction such as in Malaysia,
the evaluation of the risk to administration of justice has to consider that
it will be a professional judge who will be the person ultimately to be
addressed, not jurors.

[28]
Another issue that arises on the facts of the
present case concerns the right of a counsel acting for a party in litigation
to comment on a matter which touches an on-going active litigation. This is
the position the first respondent finds herself in. She is counsel for the
State Government in the litigation brought against it by Syabas. Once papers
are filed, must counsel then desist from commenting on the case, and if some
comment is made to the press or the public, or a section thereof, and what
are the permissible limits in law?

[29]
On the facts of the present case, however, it is
argued by the respondents that there was no comment made in relation to the
on-going suit, and hence there was no issue of sub judice to speak of in the
first place.

[30]
It is therefore very necessary to scrutinise the
underlying facts of this dispute carefully, and set the facts against the
allegation of sub judice and contempt alleged by the applicant.

SCRUTINY
OF THE UNDERLYING FACTS

[31]
The essence of the complaint then appears as false
statements being made that, on an objective view, might lead a reasonable
reader of average intelligence to believe the plaintiff was insolvent and not
bona fide in requesting for the increase in water tariffs, and further, these
statements attack the plaintiff's integrity and propriety in such a way as
calculated to interfere with the course of justice, or likely to do so, since
it will lead the court to be hesitant to find in favor of the plaintiff in
the ongoing suit.

[32]
As I stated earlier it is necessary to study the
report very carefully and determine whether this news report has the tendency
suggested. I have quoted the entire news report earlier. In so doing, the
exact setting has to be appreciated. The report, I find, alludes to a
'taklimat' or briefing given to a group of representatives from 30 Sekolah
Agama Rakyat as part of a campaign to protest the increase in water tariff.
It was further given at a closed door meeting.

[33]
The occasion, and the briefing, was in relation to
the campaign, which itself was part of a wider public discourse on the water
tariff issue. This wider discourse was actively carried in the electronic and
print media. Indeed, as counsel for the first respondent argues, the whole
issue of privatisation of water resources has been discussed at length by
members of the public well before the filing of the Syabas suit in 2010. The
issue then narrows itself to the question whether public debate on this must
come to an abrupt stop when a writ is filed. At this juncture practical
reality and law have somehow to find an accommodation based on considered
principles. And here the applicable principles are best extracted from more
current cases. One such persuasive authority is the Australian decision of Hinch
v Attorney General of Victoria
(1988) 164 CLR 15, where the High Court of Australia said:

It is of extreme public interest that no conduct
should be permitted which is likely to prevent a litigant in a court of
justice from having his case tried free from all matter of prejudice. But the
administration of justice, important though it undoubtedly is, is not the only
matter in which the public is vitally interested; and if in the course of the
ventilation of a question of public concern matter is published which may
prejudice a party in the conduct of a law suit, it does not follow that a
contempt has been committed. The case may be one in which as between
competing matters of public interest the possibility of prejudice to a
litigant may be required to yield to other and superior considerations. The
discussion of public affairs and the denunciation of public abuses, actual or
supposed, cannot be required to be suspended merely because the discussion or
the denunciation may, as an incidental but not intended by-product, cause
some likelihood of prejudice to a person who happens at the time to be
litigant.

MEDIA
FREEDOM, FAIR COMMENT AND FAIR TRIAL

[34]
Mr Tommy Thomas also cites with full force Lord
Denning's crispy statement of the relevant law in Wallersteiner v Moir [1974]
3 All ER 217, which is worth repeating with full contemplation:

I know that it is commonly supposed that once a writ
is issued, it puts a stop to discussion. If anyone wishes to canvas the
matter in the press or in public, it cannot be permitted. It is said to be sub
judice. I venture to suggest that it is a complete misconception. The sooner
it is corrected, the better. If it is a matter of public interest, it can be
discussed at large without fear of thereby being in contempt. Criticisms can
continue to be made and can be repeated. Fair comment does not prejudice a
fair trial. (Emphasis added.)

[35]
If I may add, it is all a matter of proportion and
circumstance. If a comment attacks the merits of an ongoing litigation, for
example, or cast aspersions on the independence and integrity of the
judiciary and the judicial process in the context of an ongoing active suit,
there will obviously be a breach of the sub judice rule and will be an act of
contempt, as was the case in Murray Hiebert.

[36]
I cannot find these elements here. In a larger
constitutional context, the law of contempt must necessarily bend to the
higher liberty of freedom of expression, not the reverse.

[37]
The Supreme Court of Canada in Dagenais v
Canadian Broadcasting Corporation (1995) 120 DLR 12 (a case highlighted
to this court by Mr Tommy Thomas) has adopted, in my opinion, the correct
approach in constitutional interpretation in the area of media freedom and
freedom of expression generally. As such, the common law rule in relation to
sub judice has to be molded accordingly in the light of fundamental liberties
provisions. The Canadian Supreme Court said:

It is open to this court to 'develop the principles
of the common law in a manner consistent with the fundamental values
enshrined in the Constitution': Dolphin Delivery ... I am, therefore, of the
view that it is necessary to reformulate the common law rule governing the
issuance of publication bans in a manner that reflects the principles of the
Charter (the Canadian Charter of Human Rights). Given that publication bans
by their very definition, curtail the freedom of expression of third parties,
I believe the common law must be adapted so as to require a consideration
both of the objectives of a publication ban, and the proportionality of the
ban to its effect on protected Charter rights. The modified rule may be
stated as follows:

A publication ban should only be ordered when:

(a) such a ban is necessary in order to prevent a
real and substantial risk to the fairness of the trial, 'because reasonably
alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban
outweigh the deleterious effects to the free expression of those affected by
the ban (per Lamer CJC, at pp 37- 38).

[38]
These persuasive principles, emanating from such an
illustrious court, can be considered as forming a good jurisprudential basis
to decide cases such as the present. I cannot believe the sensitivities of
the average Malaysian can be so different so as to incline us to adopt a
completely different juristic approach which relegates freedom of expression
below the sub judice rule.

CONCLUSION

[39]
As I said at the outset, the preliminary governing
principles on sub judice and contempt require the court to tread very
carefully when an allegation of contempt or to commit a citizen to prison for
it, comes before the court. The court has to be satisfied on a high burden of
proof that the administration of justice has been sullied or compromised.
Ultimately, the test of possible or likelihood of prejudice has to have
reference to the professional judge who will be hearing the case, not a
collection of layman jurors -- a system which has ceased to exist in our
system of civil litigation. I would have thought it will require more than a
criticism of a litigant in a media of limited circulation (such as Harakah)
to influence a judge to be somehow prejudiced

against
the litigant criticised.

[40]
On the present facts and based on the case
authorities and the law as analysed above, I therefore do not find the
allegation of contempt proven against the respondents and as such I am
dismissing this application by Syabas with costs of RM40,000 to be paid by
the applicant to the respondents.